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FORUM: An advocate’s guide to UNHCR’s new RSD guidelines

August 24, 2005

The opinions expressed here may not represent the views of RSDWatch or Asylum Access, and are distributed here in the interests of public discussion.

By Michael Kagan website manager

In the coming weeks, UNHCR will for the first time publish guidelines specifically directed at its own offices that set minimum standards for refugee status determination (RSD) procedures.

This publication will be UNHCR’s most important response so far to growing criticism of the way it conducts RSD in around 80 countries. The strongest criticism has been that UNHCR RSD procedures are unfair, sometimes to the point of being Kafkaesque. Asylum-seekers are rejected without being told why, without being able to see the evidence used against them, without access to an independent appeal system, and sometimes with UNHCR resisting their access to independent legal advice and representation.

What should human rights advocates look for in the new guidelines?

1.           Re-affirming standards

It’s worth asking why UNHCR needs to issue these guidelines in the first place.  UNHCR has already given governments comprehensive advice about standards of fairness owed to asylum-seekers. The problem has been that UNHCR field offices have often reacted with surprise when anyone suggests that these standards should also be binding on UNHCR’s own offices.

Refugee advocates greatest fear about the new guidelines should be that UNHCR will try to lower the bar rather than improve its performance. UNHCR’s new guidelines should open with a simple declaration, explicitly or in spirit: “We practice what we preach.”

2.           The tough issues

Some of the persistent problems in UNHCR’s RSD procedures are more easily solved than others. There are two especially difficult issues of fairness for the new guidelines to tackle.

The first is the right to an independent appeal. UNHCR has long required that appeals be handled by a different person than the staff member responsible for the initial rejection.  But appeals are still usually read by a close colleague of the person who made the first decision, working under the same supervisor, and often literally in the same room.

True independence requires establishment of institutionally separate appeals units, where decision-makers have as little institutional allegiance as possible to the people who make first instance decisions. Ideally, appeals decision-makers should have a higher level of professional qualifications, and should publish decisions that can become precedents for the future. In addition to being a safeguard against error, an effective appeals system provides a mechanism for continual accountability and improvement.

Meeting this standard will take more time for UNHCR because it requires more institutional re-structuring. In the interim, larger UNHCR offices should organize separate appeals units, but many smaller field offices may have difficulty doing so. As a long term goal, UNHCR should seek to establish a system of regional appeals boards and a refugee court based in Geneva.

The second difficult area is transparency and access to evidence. UNHCR has recently advised the Council of Europe that decision-makers and asylum-seekers should have equal access to evidence except in exceptional security cases. By contrast, UNHCR offices routinely keep evidence secret. As a result, applicants cannot correct misunderstandings or offer rebuttals.

The real difficulty in fixing this problem is institutional culture. Giving people access to information means giving them access to power, in this case the power to convincingly say UNHCR makes mistakes. Today, UNHCR often operates behind an aura of authority. UNHCR officials are able to say, “We are experts, and we know,” without having to actually reveal how they reach their conclusions.

If UNHCR allowed applicants to view their own files, it would pull the wizard from behind the screen. The legitimacy of UNHCR’s decision-making would rest on the actual quality of its work, rather than on assumptions of its expertise. That is why UNHCR offices and officials are likely to resist transparency in refugee status determination. Rights advocates should insist on it for exactly the same reason.

3.           Moving toward implementation

Once there’s agreement about standards, the focus of UNHCR RSD reform should be on implementation. UNHCR has already said that it faces serious obstacles in some places in implementing the new guidelines. Fair RSD procedures are as a rule resource intensive. They require space, time, and most of all well-trained and supervised staff. UNHCR and NGOs should work closely together to meet these challenges.

Several NGOs already work with local UNHCR offices in filling some RSD-related needs, for instance in training interpreters and providing legal aid. While actual decision-making authority should never be transferred to a private organization, NGOs can often do a better job than UNHCR in providing independent information and counseling and facilitating pro bonolegal assistance, all of which are essential safeguards against genuine refugees being refused protection.

4.           A global RSD strategy

Everything I have said so far concerns how UNHCR carries out refugee status determination. Given that UNHCR is the largest refugee status decision-maker in the world, that’s the most urgent problem. But refugee advocates also should work with UNHCR to develop a long term strategy governing when, where, and why UNHCR should undertake RSD in the first place.

Even if its procedures improve, conducting individual RSD poses three big problems for UNHCR. First, it is expensive, in terms of money and people. Second, becoming the judge of asylum-seeker applications undermines UNHCR’s relationship with refugees because it compromises UNHCR’s role as a promoter of protection. Third, RSD is supposed to be a government role, and by taking over UNHCR risks enabling states to avoid their responsibilities.

My personal view is that there are many countries where UNHCR performs an enormous service to refugees by conducting RSD, but there are many other countries where UNHCR’s role in RSD is likely harmful over the long term. UNHCR says that around half of the countries where it performs RSD are actually parties to the 1951 Refugee Convention. That’s too much.

In the Middle East, where I have worked as a legal advocate, UNHCR officials and refugee advocates often talk vaguely about the need to get governments to do more. But usually, there is little local, regional or global strategy to do anything about it.

That will be the next frontier. But for now, we need to urge UNHCR to re-affirm its commitment to basic standards.

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